Do You Care about Reproductive Rights or Marriage Equality? Then You Should Care about State Judge Elections

October 09, 2014

Judicial selection at the state level isn’t easy to understand. Even the phrase itself isn’t straightforward. What we’re talking about is electing and retaining judges at the state level, and it’s an important issue for voters. But between the different systems used by states and the lack of media attention, the decisions of state judges — and the impact they have on voters — is hardly ever evident.

State judges make decisions about child custody arrangements, restraining orders, and sentencing for people found guilty of a crime. Judges rule on the validity of employment discrimination laws, restrictions on reproductive health care access, and same-sex marriage bans under state constitutions.

Given the enormous authority judges exert, it’s important to be informed about the judicial selection process in your state and the judicial candidates on the ballot before you head to the polls.

How are state judges selected?

State systems for selecting judges are very different from the federal system, and state systems vary a lot from state to state. Federal judges are appointed by the president and then confirmed by the U.S. Senate. Once confirmed, federal judges hold their seats for life — they never appear on any ballot, and barring an ethical breach, they keep their appointments until they choose to step down.

On the other hand, judges at the state level are either elected by general vote or appointed by a governor and then subject to retention votes. In states with elected judges, judicial campaigns look just like any other political campaign, complete with debates, endorsements, and yard signs. Some states have partisan judicial elections, in which candidates run as members of a specific party; others have nonpartisan elections.

In appointment states, the governor appoints judges, sometimes with recommendations from a judicial panel. State legislatures aren’t typically involved — the governor’s appointment power is exclusive. After being appointed, however, judges in appointment states are usually subject to retention votes every few years. When a judge is up for retention, her name appears on the ballot; in order to keep her seat, a majority of voters must vote to retain her as a judge. Retention votes can be low-profile. Many judges who are up for retention don’t campaign in the same way elected judges campaign.

Predictably, judicial election battles can be every bit as acrimonious as other political races. Although many retention votes fly under the radar, retention can become highly controversial, especially if a judge or state supreme court justice issues a particularly controversial ruling.

Why are the state and federal systems so different? Is one system better than another?

Article III of the U.S. Constitution governs the appointment, confirmation, and tenure of federal judges. Because the president and the U.S. Senate play key roles, federal judicial nominations are part of the political process. Politicians can use judicial nominations as bargaining chips, and nominees are aggressively questioned about how they would rule in hypothetical cases. However, once a judge is confirmed, her lifetime appointment means that she will never face political review again. Life appointments theoretically insulate federal judges from external pressure, allowing them to make independent decisions without worrying about backlash or political challenges to unpopular rulings.

The downside of lifetime appointments is that neither government officials nor voters have much influence over a federal judge’s rulings. Barring serious ethical violations, a federal judge who issues consistently unpopular rulings or rulings that most legal experts believe are wrong cannot be removed or censured.

At the state level, state constitutions and state legislation determine how judges are appointed and what kind of electoral control voters have over state courts. In appointment states, voters can remove unpopular judges through retention votes. In election states, voters choose judges just as they choose legislators. Elections and retention votes serve as checks on state judges’ decision-making power.

The flip side of elections and retention is that judges have less independence. Facing a retention vote, a judge might consider public opinion when she makes a ruling, rather than focusing solely on the legal and factual issues in the case. If she makes an unpopular ruling, she may lose a re-election campaign, even if the ruling was upheld by other courts.

There are pros and cons to each system, and each system has proponents and critics. It’s important to understand the system in your state so you know what your vote means.

Where do I go for more information about judge selection in my state and the judges on my ballot?

Nonpartisan bar associations offer basic information about the system in your state. Bar associations are professional organizations of attorneys. They typically provide voter education resources about the state’s judicial selection system and sometimes provide information on judicial candidates. Be informed when you head to the polls!

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